A Puzzle About Obscenity

De Ethica. A Journal of Philosophical, Theological and Applied Ethics Vol. 4:1 (2017) A Puzzle about Obscenity Michael Joel Kessler Laws against sexual obscenity rely on a distinction between explicit materials that merely offend and materials that cause something worse than offense. While most offensive content is protected under the banner of freedom of expression, obscenity is not. In this paper I try to locate a distinctive harm in the case of obscenity, that would justify prohibiting this material while permitting other kinds of offensive content. I argue that the best case for laws against obscenity relies on the concept of moral harm. If we rely on Mill’s Harm Principle and moral harm is a real harm, then it could be used to justify the distinction between protected and unprotected sexually explicit speech. I argue this demonstrates a weakness in the Harm Principle as a liberal principle of justice. By giving weight to moral harm, Mill’s principle risks eroding an important distinction between the public and private domains. The right to freedom of expression protects a significant amount of offensive speech. This is regarded as the price we must pay to live in a society that values diversity of thought and political disagreement. Protecting offensive speech is so essential to the United States constitution that, unlike European and Canadian courts, the U.S. Supreme Court has consistently struck down hate speech laws aimed at protecting vulnerable groups from verbal abuse. The Court’s rationale is that if the right to freedom of expression means anything then it must protect the worst speech as much as the best.1 By contrast, when it comes to sexually obscene expression the U.S. falls in line with many other countries in treating it as unprotected speech. Producers and distributors of such materials face fines or jail terms if convicted.2 Obscenity prosecutions have trended downwards in recent 1 For examples, see National Socialist Party of America v. Village of Skokie 432 U.S. 43 (1977), R.A.V. v. ST. PAUL 505 U.S. 377 (1992), and Snyder v. Phelps 562 U.S. 443 (2011). 2 ‘Federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to distribute or sell, or engage in a business of selling or transferring obscene matter. […] Although the law generally does not criminalize the private possession of obscene matter, the act of receiving such matter could violate federal laws.’ (Online at http://www.justice.gov/criminal/ceos/subjectareas/obscenity.html, last updated June 3 (2015) (accessed 2017-03-10). 5 De Ethica. A Journal of Philosophical, Theological and Applied Ethics Vol. 4:1 (2017) years yet these laws remain in place and there is little momentum to overturn them.3 During his election run in 2016 Donald Trump signed a pledge stating: ‘Internet obscenity laws have not been aggressively or adequately enforced.’4 The topic of sexual obscenity yields a division between liberal and conservative approaches to freedom of expression. Historically, liberals have regarded obscenity laws as an attempt to enforce puritanical moral standards on society as a whole, while conservatives argued that sexually explicit images can be corrupting to those who view them. Beneath the surface of this disagreement there is significant common ground. Both sides agree that some speech is not just offensive but rather can constitute an assault against its audience. In such cases there is no controversy about whether speech should be protected. Both sides agree that the state has an important role to play in balancing free speech rights against shielding citizens from being harmed. So why is the legal status of sexual obscenity controversial? The reason for the split surrounds the idea of harm. Laws against sexual obscenity rely on a distinction between sexually explicit materials that merely offend on the one hand, and materials that cause something worse than and different from offense on the other. Proponents of censorship argue that obscene materials harm rather than offend, and this is what justifies a legal intervention. This is not what the other side denies. Rather, opponents of obscenity law deny that the harms in question are sufficient to overturn the right to freedom of expression. Hence, the real point of contention surrounds the precise nature of the harms in question, and whether they are weighty enough to infringe upon a basic right. A focused debate about the relative political weight of different kinds of harm rarely emerges because there is a tendency to group very disparate harms under one category. This conflation is pervasive in political discourse. In a 2011 letter addressed to President Obama’s Attorney General, forty-one Senators said: We know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families and communities and the problems are only getting worse.5 The letter appeals to several different kinds of harm, most of which are conceptually and practically distinct. The same point can be seen in the United Kingdom’s recent attempts to modernize its obscenity laws. The new charge of ‘possession of extreme pornography’ prohibits accessing images that are ‘grossly offensive, disgusting or otherwise of an obscene character,’6 where obscene character refers to materials that ‘tend to deprave and 3 In 2005, under President George W. Bush, the U.S. Department of Justice created the Obscenity Prosecution Task Force (OPTF). In 2011, under President Barack Obama, this unit was folded into the Child Exploitation and Obscenity Section (CEOS). Republicans criticized this change as indicative of the administration’s lack of commitment to prosecuting producers of hardcore pornography. 4 The Children’s Internet Safety Presidential Pledge. Online at http://enough.org/objects/EIE- prespledge-signedtrump.pdf (accessed 2017-03-10). 5 The letter is reproduced at http://www.politico.com/static/PPM153_obsc.html (accessed 2016- 05-08). 6 Criminal Justice and Immigration Act s.63(6)(b). 6 De Ethica. A Journal of Philosophical, Theological and Applied Ethics Vol. 4:1 (2017) corrupt persons.’7 Disgust, depravity, and corruption are distinct concerns and do not rise and fall together. As such, when the government says the law sends ‘a clear message that it has no place in our society’ it is not clear what ‘it’ is, and why we should not allow reasonable pluralism with respect to its value as we do with most expression.8 In Canada, obscenity law restricts ‘undue exploitation of sex’ which isolates materials that are either violent, or dehumanizing, or degrading. The Court’s concern is with pornography that serves ‘to reinforce male-female stereotypes to the detriment of both sexes’ or that makes ‘degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable.’9 Any such materials will be found obscene if they violate a community standard of tolerance for what people should be allowed to consume in private. In all three countries obscenity law identifies a sub-group of pornography, made by and for consenting adults, and holds it to a higher legal standard than other materials. In each case there is a lack of precision about what specifically makes obscene pornography bad. This is a different problem from the definitional difficulties associated with a ‘you know it when you see it’ standard.10 The problem here is the lack of clarity about what one is supposed to be looking for. This jumbled legal approach to obscenity reinforces the complaint that at its root this is just sexual conservatism. In this paper I will argue that the case for obscenity law is strongest when we understand it as a concern about moral harm to consumers of obscene pornography. There are a variety of ways of understanding what it means to be morally harmed, and all share the general idea that one is made into a worse person than one was before. The liberal camp has mostly dismissed moral harm as shorthand for outmoded views about sex, but this response is mistaken. I will show that there is a plausible argument connecting obscene pornography with moral harms to willing consumers by interfering with their ability to function within society. If moral harm is a genuine category of harm then liberals owe an argument for why the law cannot be used to shield individuals from it. This is a task few have taken up with much depth. I will take as my ethical starting point a broadly Millian form of liberalism that places foundational value on the independence of the individual within society. Mill argues that within a democracy those with unconventional preferences should not have to ‘request permission to differ’ from others.11 This violates both the equality of persons and the important liberty that each person needs to test out for oneself which ways of life are best. For this reason Mill defends a right to liberty of tastes and pursuits alongside his famous arguments for freedom of expression. This implies that individual freedom, especially when it comes to both unpopular choices and unpopular speech, must be 7 Obscene Publication Act s.1. 8 Home Office 2005, 1. Cited in Paul Johnson ‘Law, Morality and Disgust: The Regulation of “Extreme Pornography” in England and Wales’, Social & Legal Studies 19:2 (2010), pp. 147-163. 9 Regina v. Butler, 1 S.C.R. 452 (1992). 10 Jacobellis v. Ohio, 378 U.S. 184 (1964). Few people who cite Justice Potter’s words recall the ones that preceded them: ‘I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so.’ 11 John Stuart Mill, On Liberty (1859), edited by Mary Warnock (Oxford: Blackwell: 2003), p.

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